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DecisionDescriptionPERC Vol.PERC IndexDate
A504M Consolidated Irrigation District
1109.03000: CASE PROCESSING PROCEDURES; ISSUES ON APPEAL; Standard of Review/Deference to Board Decision
In an appeal from an administrative determination, the appellant must demonstrate how or why the challenged decision departs from the Board’s precedents or regulations. (Children of Promise Preparatory Academy (2018) PERB Order No. Ad-470, p. 4.) In an appeal concerning a stay of a decertification election, “the inquiry on appeal is whether the OGC abused [its] discretion.” (Imagine Schools at Imperial Valley (2016) PERB Order No. Ad-431, p. 6) (p. 5.) more or view all topics or full text.		 48 151 08/14/23
A504M Consolidated Irrigation District
1109.01000: CASE PROCESSING PROCEDURES; ISSUES ON APPEAL; In General
In an appeal from an administrative determination, the appellant must demonstrate how or why the challenged decision departs from the Board’s precedents or regulations. (Children of Promise Preparatory Academy (2018) PERB Order No. Ad-470, p. 4.) In an appeal concerning a stay of a decertification election, “the inquiry on appeal is whether the OGC abused [its] discretion.” (Imagine Schools at Imperial Valley (2016) PERB Order No. Ad-431, p. 6) (p. 5.) more or view all topics or full text.		 48 151 08/14/23
A504M Consolidated Irrigation District
1107.20000: CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD; Other
In an appeal from an administrative determination, the appellant must demonstrate how or why the challenged decision departs from the Board’s precedents or regulations. (Children of Promise Preparatory Academy (2018) PERB Order No. Ad-470, p. 4.) In an appeal concerning a stay of a decertification election, “the inquiry on appeal is whether the OGC abused [its] discretion.” (Imagine Schools at Imperial Valley (2016) PERB Order No. Ad-431, p. 6) (p. 5.) more or view all topics or full text.		 48 151 08/14/23
2867M City and County of San Francisco
1405.01000: GENERAL LEGAL PRINCIPLES; COLLATERAL ESTOPPEL; RES JUDICATA; In General
Collateral estoppel precludes the relitigation of an issue already decided in another proceeding where: “(1) the issue is identical to that decided in the former proceeding, (2) the issue was actually litigated in the former proceeding, (3) the issue was necessarily decided in the former proceeding, (4) the decision in the former proceeding is final and on the merits, and (5) preclusion is sought against a person who was a party or in privity with a party to the former proceeding.” (Castillo v. City of Los Angeles (2001) 92 Cal.App.4th 477, 481; see also City and County of San Francisco (2022) PERB Order No. Ad-497-M, p. 27.) more or view all topics or full text.		 48 30 07/24/23
2867M City and County of San Francisco
1401.01000: GENERAL LEGAL PRINCIPLES; LACHES; In General
“The party asserting and seeking to benefit from the laches bar bears the burden of proof on these factors.” (Mt. San Antonio Community College Dist. v. Public Employment Relations Bd. (1989) 210 Cal.App.3d 178, 188.) In unfair practice proceedings, laches requires a respondent to show: (1) the charging party has unreasonably delayed in prosecuting its case, and (2) either the charging party has acquiesced in the acts about which it complains, or the respondent has suffered prejudice as a result of the charging party’s unreasonable delay. (Santa Ana Unified School District (2017) PERB Decision No. 2514, p. 22, citing Mt. San Antonio Community College Dist. v. Public Employment Relations Bd., supra, 210 Cal.App.3d at p. 188; Vernon Fire Fighters Assn. v. City of Vernon (1986) 178 Cal.App.3d 710, 719; Santa Monica Mun. Employees Assn. v. City of Santa Monica (1987) 191 Cal.App.3d 1538, 1546-1547.) (pp. 51-52.) more or view all topics or full text.		 48 30 07/24/23
2867M City and County of San Francisco
1205.03000: REMEDIES FOR UNFAIR PRACTICES; MISCELLANEOUS REMEDIAL PROVISIONS; Notices; Posting, Reading, and Mailing
When void and unenforceable Charter provisions impacted City employees beyond the bargaining units represented by Charging Parties, Board ordered the notice to be posted City-wide. more or view all topics or full text.		 48 30 07/24/23
2867M City and County of San Francisco
1205.01000: REMEDIES FOR UNFAIR PRACTICES; MISCELLANEOUS REMEDIAL PROVISIONS; In General
An action in quo warranto is the exclusive means to invalidate a ballot initiative that was passed in violation of the MMBA’s meet-and-confer requirement. (See Boling v. Public Employment Relations Bd. (2019) 33 Cal.App.5th 376, 384-386.) But when the order does not remedy a procedural irregularity in the legislative process that resulted in the enactment of any portions of the City Charter, quo warranto would not be available to remedy the violations alleged in this case. Where a local ordinance conflicts with the MMBA, it is void or invalid. (See LA County, supra, 160 Cal.App.3d at p. 908; see also Huntington Beach Police Officers’ Assn. v. City of Huntington Beach, supra, 58 Cal.App.3d at p. 503.) more or view all topics or full text.		 48 30 07/24/23
2867M City and County of San Francisco
1205.01000: REMEDIES FOR UNFAIR PRACTICES; MISCELLANEOUS REMEDIAL PROVISIONS; In General
Because PERB is a quasi-judicial agency, the separation of powers doctrine prevents PERB from compelling legislative action by a city or county. (City of Palo Alto v. Public Employment Relations Bd. (2016) 5 Cal.App.5th 1271, 1310 (Palo Alto).) Therefore, PERB lacks the authority to order the City to rescind charter provisions. However, it is “appropriate and within PERB’s authority to declare void and unenforceable portions of the Charter that conflict with the MMBA. Unlike ordering the language ‘rescinded,’ such an order does not amount to ‘rewriting’ the Charter, but merely enjoins enforcement of the illegal regulation.” (CCSF III, supra, PERB Decision No. 2536-M, p. 39.) (pp. 53-54.) more or view all topics or full text.		 48 30 07/24/23
2867M City and County of San Francisco
1202.02000: REMEDIES FOR UNFAIR PRACTICES; FACTORS LIMITING OR TERMINATING LIABILITY; Agreement Between. the Parties
Respondents request the parties be provided a reasonable period of time to negotiate a remedy that effectuates the purposes of the MMBA, which is opposed by Charging Parties. The Board has a longstanding policy favoring voluntary settlement of disputes. (Dry Creek Joint Elementary School District (1980) PERB Order No. Ad-81a.) Because the unlawful provisions affect City employees beyond the Charging Parties’ bargaining units, the number of interested parties makes a potential alternative resolution ill-suited for negotiation by only two of the many unions representing City employees. We do not find it appropriate to provide the parties with additional time to negotiate, but to the extent the parties are now able to reach mutually agreeable terms that substantially comply with the Board’s remedial order, they may present the settlement agreement to the OGC, to be considered during compliance. (p. 56.) more or view all topics or full text.		 48 30 07/24/23
2867M City and County of San Francisco
1107.20000: CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD; Other
The Board may exercise its discretion not to resolve that claim because the remedial order already requires the City cease and desist distributing the Charter acknowledgement forms. (The Accelerated Schools (2023) PERB Decision No. 2855, p. 3 [exercising discretion not to resolve or remand a claim that would not materially alter the remedy if proven], citing City of Bellflower (2021) PERB Decision No. 2770-M, p. 10; see also County of San Joaquin (2021) PERB Decision No. 2761-M, p. 83; City of Glendale (2020) PERB Decision No. 2694-M, pp. 58-59.) (p. 42.) more or view all topics or full text.		 48 30 07/24/23
2867M City and County of San Francisco
1105.03000: CASE PROCESSING PROCEDURES; EVIDENCE; Burden of Proof; Weight of Evidence; Presumptions and Inferences; Affirmative Defenses
When a local rule is challenged as unlawful, we start from a position of presuming that an employer’s rule is reasonable and lawful, which means that the burden of proof is on the party challenging such a rule. (pp. 24-25.) more or view all topics or full text.		 48 30 07/24/23
2867M City and County of San Francisco
750.01000: EMPLOYER ADOPTION/ENFORCEMENT OF UNREASONABLE RULE; In General
Charter section dedicated to prohibiting employee strikes, mandating City management surveil employees during a strike and terminate any employee found to have engaged in strike activity found unlawful. Its across-the-board approach to prohibiting all employee strikes is contrary to PERB’s narrow, restrained methodology for determining the lawfulness of a strike, as dictated by County Sanitation, supra, 38 Cal.3d at p. 586. (County of San Mateo, supra, PERB Order No. IR 61-M, pp. 6-8.) more or view all topics or full text.		 48 30 07/24/23
2867M City and County of San Francisco
750.01000: EMPLOYER ADOPTION/ENFORCEMENT OF UNREASONABLE RULE; In General
A facial challenge to a rule is based solely on the text of the rule. “There are at least two possible standards for evaluating a facial challenge. (Guardianship of Ann S. (2009) 45 Cal.4th 1110, 1126.) Under the stricter standard, we should reject a facial challenge to a rule unless it totally and fatally conflicts with the MMBA. (Ibid.) Courts often follow a more lenient standard, however, wherein a facial challenge to a rule can be sustained if it conflicts with the MMBA “in the generality or great majority of cases.” (Ibid.) Under either test, a party alleging a facial violation cannot prevail merely by suggesting that the challenged rule may run afoul of the law in “some future hypothetical situation.” (Beach & Bluff Conservancy v. City of Solana Beach (2018) 28 Cal.App.5th 244, 264.) (pp. 27-28.) more or view all topics or full text.		 48 30 07/24/23
2867M City and County of San Francisco
750.01000: EMPLOYER ADOPTION/ENFORCEMENT OF UNREASONABLE RULE; In General
Under the MMBA, a local agency may adopt reasonable rules and regulations pertaining to resolving collective bargaining disputes. (MMBA, § 3507, subd. (a)(5).) In order to be lawful, such rules and regulations may not undercut or frustrate the MMBA’s policies and purposes. Therefore, if a local agency has adopted its rules, regulations, or charter provisions, whether by a vote of its electorate, a vote of its governing board, or by any other means, the resulting policies must be consistent with the MMBA. (p. 24.) more or view all topics or full text.		 48 30 07/24/23
2867M City and County of San Francisco
403.04000: EMPLOYER INTERFERENCE; RESTRAINT, COERCION; SURVEILLANCE; Statements to Employees, Creating Impression of Surveillance
Charter subsections that require actual surveillance of employees engaging in strike activities and create the appearance of surveillance found unlawful. Surveillance of protected activity, or creating the appearance of surveillance, totally conflicts with the MMBA. (County of San Bernardino (2018) PERB Decision No. 2556-M, p. 20 [employer photographing or videotaping employees or openly engaging in recordkeeping of employees participating in union activities is unlawful surveillance because of the tendency to intimidate employees].) (pp. 31-32.) more or view all topics or full text.		 48 30 07/24/23
2867M City and County of San Francisco
403.01000: EMPLOYER INTERFERENCE; RESTRAINT, COERCION; SURVEILLANCE; In General; Unlawful Surveillance
Charter subsections that require actual surveillance of employees engaging in strike activities and create the appearance of surveillance found unlawful. Surveillance of protected activity, or creating the appearance of surveillance, totally conflicts with the MMBA. (County of San Bernardino (2018) PERB Decision No. 2556-M, p. 20 [employer photographing or videotaping employees or openly engaging in recordkeeping of employees participating in union activities is unlawful surveillance because of the tendency to intimidate employees].) (pp. 31-32.) more or view all topics or full text.		 48 30 07/24/23
2867M City and County of San Francisco
301.01000: UNFAIR PRACTICE ISSUES; STRIKES, SLOWDOWNS AND WORK STOPPAGES; In General
Strikes by public employees are statutorily protected, except as limited by other provisions of the MMBA or other public-sector labor relations statutes and controlling precedent. (p. 25) more or view all topics or full text.		 48 30 07/24/23
2867M City and County of San Francisco
301.01000: UNFAIR PRACTICE ISSUES; STRIKES, SLOWDOWNS AND WORK STOPPAGES; In General
The limitations on California public sector employees’ right to strike are few and carefully defined. As the California Supreme Court explained, “strikes by public employees are not unlawful at common law unless or until it is clearly demonstrated that such a strike creates a substantial and imminent threat to the health or safety of the public.” (County Sanitation, supra, 38 Cal.3d at p. 586; see San Ramon Valley Unified School District (1984) PERB Order No. IR-46, p. 10 [a strike provoked by an employer’s unfair labor practices would be protected at any time during the bargaining process as long as the striking employee organization has not failed to participate in good faith in the statutory impasse procedure]; CCSF III, supra, PERB Decision No. 2536-M, p. 54 [“an economic strike occurring after exhaustion of statutory or other applicable impasse-resolution procedures” is “statutorily protected”].) In addition to the County Sanitation standard, there are other instances where a strike can be found unlawful. For example, a strike occurring before the completion of statutory impasse procedures creates a rebuttable presumption that the strike violated the union’s duty to bargain and participate in the impasse procedures in good faith. (Fresno County IHSS, supra, PERB Decision No. 2418-M, p. 28; Sweetwater Union High School District (2014) PERB Order No. IR-58, pp. 9, 18 (Sweetwater).) The presumption may be overcome by the union’s showing that the strike was an “unfair practice strike.” (Rio Hondo Community College District (1983) PERB Decision No. 292, pp. 22-23 [union required to demonstrate that the employer committed an unfair practice and that misconduct provoked the strike].) A strike may also be unlawful if it is found to constitute “unlawful pressure tactics.” (See Regents of the University of California (2019) PERB Order No. IR-62-H, pp. 6-10.) (p. 26.) more or view all topics or full text.		 48 30 07/24/23
A502E Pasadena Area Community College District
1303.09000: REPRESENTATION ISSUES; ELECTIONS; Stay of
An appeal from an administrative determination does not automatically stay further proceedings. (PERB Reg. 32370.) However, the parties’ agreement to hold the decertification election in the fall mooted any need to formally stay the election pending the Board’s decision. The Board noted that while it is sometimes feasible to hold an election even though there are disputes over voter eligibility, as parties can challenge disputed ballots, which can then be impounded and sealed, with challenges resolved after the fact only if they are potentially dispositive in number, such a path would have been ill advised here because a large portion of the eligibility list was in dispute. Large-scale confusion over global issues (including voter eligibility or unit configuration) will tend to impair employee free choice. (City of Bellflower (2020) PERB Order No. Ad-480-M, p. 12, fn. 12.) In such circumstances, it is typically better to resolve the global issue(s) before holding an election. (Ibid.) (p. 3 & fn. 4.) more or view all topics or full text.		 48 19 06/28/23
A502E Pasadena Area Community College District
1303.08000: REPRESENTATION ISSUES; ELECTIONS; Mechanics of Election
Board set voter eligibility standards and directed that the Notice of Election include, among other instructions and information: (a) a description of the voter eligibility criteria for regular and intermittent employees; and (b) instructions for employees to request provisional ballots if they claim to be eligible to vote but do not appear on the initial eligibility list, or duplicate ballots if they appear on the list but do not receive the ballot within a reasonable time after Office of the General Council’s initial mailing. (pp. 5 & 15.) more or view all topics or full text.		 48 19 06/28/23
A502E Pasadena Area Community College District
1303.07000: REPRESENTATION ISSUES; ELECTIONS; Voter Eligibility/Lists/Home Addresses
Because there is a “clear distinction between voter eligibility and unit membership eligibility,” the Board “has consistently held that employees should be included in bargaining units regardless of how few hours they may work a year, while at the same time limiting who may vote in representation elections.” (Poway Unified School District (2015) PERB Decision No. 2441, p. 6; see also Oakland Unified School District (1988) PERB Order No. Ad-172, pp. 4-5 [distinguishing unit composition precedent from voter eligibility precedent]. (p. 10, fn. 6.) more or view all topics or full text.		 48 19 06/28/23
A502E Pasadena Area Community College District
1303.07000: REPRESENTATION ISSUES; ELECTIONS; Voter Eligibility/Lists/Home Addresses
Because part-time faculty who work intermittently do not necessarily lose all EERA rights between their assignments, the Board found no cause to limit voting rights to those part-time faculty working at the time a petition is filed. Instead, PERB employed a look-back using criteria that tend, on average, to winnow out those lacking a reasonable expectation of future employment. (pp. 11-12.) more or view all topics or full text.		 48 19 06/28/23
A502E Pasadena Area Community College District
1303.07000: REPRESENTATION ISSUES; ELECTIONS; Voter Eligibility/Lists/Home Addresses
In administering a decertification election involving a mixed bargaining unit of regular and intermittent employees, PERB must design a voter eligibility standard for intermittent employees that tends to enfranchise those with an “established interest” in employment relations with the employer based upon their having manifested a reasonable expectation of future employment. (State of California (Department of Personnel Administration) and California Union of Safety Employees (1992) PERB Decision No. 948-S, p. 6.) In such cases, “no test is perfect.” (Ibid.) Absent a reasonable stipulation by the parties resolving with sufficient clarity which intermittent employees can vote, PERB must establish a feasible, context-specific standard that reasonably relates to such employees’ objective future expectation, while minimizing the extent to which the standard is overinclusive or underinclusive. Such a feasible, context-specific voter eligibility test should be based on all relevant circumstances. A context-specific voter eligibility test is typically backward-looking and PERB prioritizes two or three types of criteria: a minimum quantity of past work (typically at least 10 percent of full time); recency (typically work in the prior 1-2 years); and, for positions with periodicity, PERB has discretion to require a second stint of employment to winnow out those for whom the past work was merely an isolated episode. (pp. 8-11.) more or view all topics or full text.		 48 19 06/28/23
A502E Pasadena Area Community College District
1303.07000: REPRESENTATION ISSUES; ELECTIONS; Voter Eligibility/Lists/Home Addresses
PERB Regulation 32728, entitled Voter Eligibility, provides, in part: “Unless otherwise directed by the Board, to be eligible to vote in an election, employees must be employed in the voting unit as of the cutoff date for voter eligibility, and still employed on the date they cast their ballots in the election.” Thus, Regulation 32728 provides the Board with discretion to set a voter eligibility standard different from the default standard the regulation sets out. The Board found no cause to vary from the default standard for the District’s regular faculty. The Board reached a different conclusion for the District’s part-time faculty because they are intermittent employees, concluding that they may vote if their work on behalf of the District includes serving in a unit position during two or more of the most recent six instructional terms, including at least one of the most recent three instructional terms. (p. 8.) more or view all topics or full text.		 48 19 06/28/23
A502E Pasadena Area Community College District
1303.07000: REPRESENTATION ISSUES; ELECTIONS; Voter Eligibility/Lists/Home Addresses
Exclusive representative asked Board agent to certify an interlocutory appeal to the Board over whether the Board agent’s administrative determination (AD) erred in establishing a certain voter eligibility test for a decertification election. The unit consists of full-time (regular) faculty and part-time (temporary) faculty. Many part-time faculty work intermittently, meaning they work some terms but not others, or work for one term only. The AD concluded that faculty are eligible to vote if they worked during either the Fall 2022 or Spring 2023 terms. The exclusive representative filed an interlocutory appeal, arguing that this standard would enfranchise many part-time faculty who do not have a reasonable expectation of future employment. The Board agent certified the appeal to the Board pursuant to PERB Regulation 32200. The Board partially sustained the appeal, holding as follows. Regular faculty may vote if they are employed in the unit on the eligibility cutoff date and are still employed when they cast their ballots. Because the District’s part-time faculty are intermittent employees, they may vote if their work on behalf of the District includes serving in a unit position during two or more of the most recent six instructional terms, including at least one of the most recent three instructional terms. The Board overruled State of California (Department of Personnel Administration) and Association of Staff, Administrative and Financial Employees (1985) PERB Decision No. 532-S to the extent it can be read as requiring the Office of the General Counsel to apply the same eligibility standards at the proof of support stage and the election stage. (pp. 4-5, 14-15.) more or view all topics or full text.		 48 19 06/28/23